Malaysia mulls how to re­spond to ter­ror

Malaysia’s In­ter­nal Se­cu­rity Act (ISA) was en­acted in 1960 and re­mained in force right un­til its re­peal in 2012.

The act was crit­i­cized for sev­eral rea­sons, chief among them be­ing the wide and ar­bi­trary detention with­out trial pow­ers ex­er­cis­able by the po­lice and the home min­is­ter with­out ju­di­cial scru­tiny.

When the gov­ern­ment an­nounced that the law would be re­pealed in 2011, many har­bored hope that we would see the end of such leg­is­la­tions, which al­low for detention with­out trial.

The ISA was re­placed with the Se­cu­rity Of­fences (Spe­cial Mea­sures) Act (Sosma).

Sosma al­lowed for limited pre­ven­tive detention for in­ves­tiga­tive pur­poses of 24 hours ini­tial detention and a fur­ther 28 days au­tho­rized by a po­lice of­fi­cer above the rank of su­per­in­ten­dent. One can cer­tainly make the ar­gu­ment as to whether 28 days is too long for pur­poses of in­ves­ti­ga­tion and a case can cer­tainly be made that the 28 days should be au­tho­rized by the court in­stead of the po­lice, but in terms of pow­ers to de­tain, Sosma was an i mprove­ment over the ISA. Then last year, amend­ments were made to the Pre­ven­tion of Crime Act.

The pro­vi­sions of the Pre­ven­tion of Crime Act now read like those of the In­ter­nal Se­cu­rity Act. There are pro­vi­sions for ini­tial detention for up to 60 days and pro­vi­sions for a detention or­der, is­sued by what is known as a Pre­ven­tion of Crime Board, for up to two years re­new­able in­def­i­nitely.

Such pow­ers to de­tain are no longer for pur­poses of in­ves­ti­ga­tion but puni­tive mea­sures for a per­son who is not even charged in court.

It would ap­pear that detention with­out trial has made a come­back.

Last week, the gov­ern­ment tabled the Pre­ven­tion of Ter­ror­ism Bill.

The bill was tabled to­gether with an­other new bill and five other amend­ments to ex­ist­ing acts. They are pack­aged as anti-ter­ror leg­is­la­tions to deal with the phe­nom­e­non of “for­eign fighters” (lo­cals who go over­seas to en­gage in ter­ror ac­tiv­i­ties) and the Is­lamic State (IS) threat.

We have been told that new leg­is­la­tion is needed to deal with for­eign fighters and IS. What we have not been told is why the ex­ist­ing leg­is­la­tion is in­suf­fi­cient.

The gov­ern­ment has not given its de­tailed jus­ti­fi­ca­tion as to why the pro­vi­sions of Sosma, for all the crit­i­cisms, are not enough to deal with emerg­ing ter­ror threats.

The Pre­ven­tion of Ter­ror Bill pro­vides that af­ter the ini­tial 24 hours’ detention, the sus­pect shall be brought be­fore a mag­is­trate who shall af­ter be­ing pro­vided with a writ­ten state­ment by the po­lice that there are grounds to be­lieve that the sus­pect is in­volved in a ter­ror­ism of­fence, or­der the per­son to be de­tained for up to 21 days.

Af­ter that, the per­son shall be brought again be­fore the mag­is­trate, and upon be­ing pro­vided with a state­ment by a deputy public pros­e­cu­tor of the same grounds, de­tain the per­son for a sub­se­quent pe­riod of 38 days.

It may seem that there is ju­di­cial over­sight in th­ese 21 days plus 38 days, but in ac­tual fact the mag­is­trate is noth­ing more than a “rub­ber stamp.”

The mag­is­trate is not given any in­for­ma­tion or ma­te­rial or sub­stan­ti­ated grounds for the detention of a sus­pect.

Af­ter the 21 days plus 38 days detention pe­riod has passed, the sus­pect’s case may be brought be­fore a Pre­ven­tion of Ter­ror­ism Board.

The board may or­der the detention of a sus­pect af­ter con­sid­er­ing re­ports, in­clud­ing that of the “in­quiry of­fi­cer,” and is sat­is­fied with re­spect to any per­son that such per­son has been or is en­gaged in the com­mis­sion or sup­port of ter­ror­ist acts in­volv­ing listed ter­ror­ist or­ga­ni­za­tions in a for­eign coun­try or any part of a for­eign coun­try and that it is nec­es­sary in the in­ter­est of the se­cu­rity of Malaysia or any part of Malaysia. This detention or­der may be up to two years, re­new­able in­def­i­nitely. Th­ese pro­vi­sions, which al­low for detention, are sim­i­lar to those con­tained in the ISA. More im­por­tantly, it does ap­pear that the bill pur­ports to oust the courts’ ju­ris­dic­tion to re­view the de­ci­sion of the board, un­less it re­lates to pro­ce­dure.

Again, this is sim­i­lar to the pro­vi­sions of the ISA. It is no won­der that some are call­ing it ISA 2.0.

Make no mis­take; the IS threat is real. Ter­ror­ism is de­plorable and ab­hor­rent, and erad­i­cat­ing ter­ror­ism is some­thing which civil so­ci­ety would not hes­i­tate to sup­port. But so­ci­ety must not for­sake hu­man rights and fun­da­men­tal lib­er­ties in the name of ter­ror pre­ven­tion.

Any anti-ter­ror leg­is­la­tion must have suf­fi­cient safe­guards in or­der to pre­vent any abuse and to en­sure that hu­man rights and fun­da­men­tal lib­er­ties are up­held.

There are many other crit­i­cisms of the bill apart from those listed above. But the point to be made is this: it is a fun­da­men­tal prin­ci­ple of the rule of law that a per­son is in­no­cent un­til proven guilty. Due process must be ad­hered to, a sus­pect must be charged, and the charge must be proven in court.

The sus­pect must also be al­lowed to meet that charge in court. Then, and only then, can a per­son be in­car­cer­ated and pun­ished.

If we pur­port to be of a higher moral stand­ing than the ter­ror­ists, who have scant re­gard for due process and the rule of law, then we must not aban­don th­ese prin­ci­ples in our ef­forts to com­bat ter­ror­ism.